I concluded an assault in the third degree case in Queens County that highlighted several common issues that arise in the context of defending assault in the third degree charges in Queens County, and for that matter in any of the other counties in New York City (Bronx, Brooklyn, Manhattan).

My client had no prior criminal history at all, and in fact had a very good job with the MTA. According to the criminal court complaint, my client was supposed to have attacked another woman in a local park in Queens. As is often the case, to the great frustration of this client and many others before her, the criminal court complaint was silent as to what was supposed to have provoked the alleged assault. Strictly speaking, the law does not require the Government to prove any motive or reason at all, and therefore, the Criminal Court Complaint need not, and therefore usually does not, offer any insight into the Government's theory as to WHY the assault took place.

For our part, my client conceded there was an altercation between her and the complaining witness, but that in fact it was the complaining witness who attacked her. They were known to each other and had longstanding feuds between their families over any number of issues. My understanding of the chain of events was that the complaining witness observed my client seated on a park bench in their neighborhood park and made some sort of rude comment to my client, to which my client responded verbally in kind. This resulted in the complaining witness attacking her. My client defended herself, both my client and the complaining witness received minor injuries, and the complaining witness fled the scene. My client went straight to a local police precinct and reported herself being attacked by the complaining witness. The police began taking the report and were prepared to make an arrest of the complaining witness.

The complaining witness, however, also went to the police, although at a different location than where my client went. She also was treated for minor injuries at a local emergency room. While my client was still at the precinct where she had reported the incident, however, the police were able to establish that two reports were made about the same incident. Here the police had two competing reports of how the incident occurred and who was at fault. Ultimately, the police resolved the issue by using an old rule of thumb that drives many assault prosecutions in New York City, and likely the world.

The Race to the Police

The rule of thumb in assault prosecutions is that whoever reports the incident first is the victim. In this case, an analysis of the timing of the reports indicated that the complaining witness had won the race to the police. Therefore, she was labeled the victim, and my client was labeled the defendant. A supporting line of "analysis" and other common rule of thumb for the police is that whoever is injured the most is the victim and whoever is injured the least is the defendant. In this case, although the complaining witness' injuries were minor, they were greater than my client's. This essentially sealed the deal against my client.

It would be nice to imagine that the police use more sophisticated investigatory techniques to decide who to arrest and prosecute in assault third degree cases, but alas it often comes down to who reported it first and who is injured the most. Neither one of these factors, of course, is necessarily meaningful to the determination of who is guilty and who is not. But in most assault in the third degree "investigations", this will be as sophisticated as it gets.

Therefore, my client was suddenly transformed from complaining witness into the defendant in an assault in the third degree case in Queens.

Now the fact that she was an employee of the MTA raised another issue that ultimately caused us to push the case to trial, even though the nightmare emotional rollercoaster of a trial was the last thing on earth that my client really wanted to do. The reason for this was that her job informed her that any settlement of the assault charge that suggested that she was guilty of a violent sort of offense would result in her termination from her good job at the MTA. Now, my client was not that motivated to settle her matter up front, of course, because she felt strongly that she was wronged. But ultimately, as the case progressed through the system on its path toward trial, I was able to persuade the Assistant District Attorney on the case that his case was not really that strong and that he faced a serious possibility of a loss at trial. Therefore, the prosecutor offered my client an Adjournment in Contemplation of Dismissal, which is a sort of delayed dismissal without a formal acknowledgement of guilt. Once my client understood that this procedure allowed her to settle the matter without agreeing that she had done anything wrong, and that it resulted in a dismissal after six months, she was willing to accept this.

But there was a problem. The problem was that the Government put a condition on the ACD offer that my client pay about $700 in uncovered medical expenses from the emergency room visit as restitution. For the sake of settling the matter so favorably without the need for a trial, my client was willing to bite the bullet and pay the medical expenses. She had some trouble with this notion, because it upset her to agree to pay for something that she did not start, but eventually came around to it as a form of risk management decision.

And that would have been the way it ended had not the MTA told her that if she accepted the settlement, that she would be fired. MTA took the position that although the ACD procedure did not involve an admission of guilt, the agreement to pay restitution WAS an admission of guilt and therefore they would treat the settlement as if she had pleaded guilty to the assault in the third degree.

On Our Way to a Rare NYC Misdemeanor Trial

Therefore we had to take the case to trial. Misdemeanor trials, even for assault in the third degree, are extremely rare in New York City. To give you an idea of just how rare misdemeanor trials are in New York City Criminal Court, in the most recent year where statistics are available (2016) there were 591 trials in the whole year. Realize that covers all five boroughs of New York City. There were 268,073 misdemeanor cases brought into the system in 2016 (205,386 in regular arraignments and 62,687 in Desk Appearance Tickets). That means that less than one percent of all misdemeanor cases went to trial in New York City in 2016. My experience suggests that there is nothing particularly unusual about this statistic. (See Annual Report for NYC Criminal Court, 2016)

As an aside, these statistics about misdemeanor trials in New York City should lead you to be highly suspicious of someone who very early in a misdemeanor case, especially during an initial consultation, starts talking too much about how your case is going to go to trial. As you can see, the odds of your misdemeanor case being one of the few misdemeanors being tried in New York City Criminal Court are staggeringly long. Purely statistically, a misdemeanor has less than a one percent chance of being tried.

And yet, here we were about to start an assault in the third degree, misdemeanor trial in Queens. And then another interesting thing happened that happens quite often in New York City Criminal Courts in those rare instances when a case does find its way to being sent out for trial.

Bench Trial!

The District Attorney's Office reduced the case from a charge of Assault in the Third Degree to Attempted Assault in the Third Degree. The Government intentionally reduced the level of seriousness of the case from an A misdemeanor (Assault in the Third Degree) to a B misdemeanor (Attempted Assault in the Third Degree).

Why on earth would the Government do this on its own? For a few reasons actually. Although it reduces the jail time exposure of the accused from one year in jail to 90 days in jail, the truth of the matter is that the Government knew that in my case, even if they got a conviction, few if any judges would have put my client in prison for even one day in a case such as this, certainly not likely more than 90. In fact, the Government upon conviction might not even ask for jail time. They would simply be looking to get a conviction for a crime. Attempted assault in the third degree is still a crime and would still give my client a criminal record all the same.

But still, why would the Government bother?

The answer is part administrative and part strategic. The strategic part has to do with making their own case easier to prove. In order to prove assault in the third degree, the Government must establish "physical injury" which has a very particular meaning in criminal court and requires a certain level of proof that may not always be easy for the Government. One way to avoid the need to prove this "physical injury" requirement is simply to reduce the case to "Attempted Assault in the Third Degree". So by reducing the case, the Government just makes its own case so much easier and less technical to prove.

The administrative part has to do with pressure from the Court System to do more "Bench Trials". Bench trials, or trials where the Judge decides guilt or lack of guilt, and not a jury, a favorite of the Court Administration. In New York City, if the most serious charge against a defendant is a B misdemeanor (like attempted assault in the third degree), then the defendant loses the right to a Jury Trial and the case is tried as a Bench Trial to a Judge. Jury selection is cumbersome and time consuming and expensive for the Courts. A Bench trial allows a Judge to schedule just a little bit of time here or there to conduct the trial in a piecemeal fashion as opposed to needing to get jurors out as soon as possible and therefore being obligated to assign a judge to just do one case for days at a time without interruption. Where consistent with its own ends, therefore, the Government does look for opportunities to appease the Court Administration and conduct more bench trials.

Some more cynical folks in the criminal justice system would say that the Government's use of bench trials is influenced by a sense that they feel as if they are more likely to be successful at bench trials than jury trials. The actual statistics (from 2016), however, don't support a dramatic difference in conviction rate as between judges and juries. In 2016, judges convicted at a rate of 53%, while juries convicted at a rate of 48%. Both statistics hover around 50%, interestingly enough, making the decision to go to trial nearly a statistical flip of the coin. Of course it is far more complicated than that, and there are a lot of factors that could account for even the smallish difference between judge and jury conviction rates.

Believe it or not, even though the reduction of the charge to a B misdemeanor clearly reduces risk to the accused, some defense lawyers will object to the reduction on the theory that the reduction is an illegal means to deprive the accused of a jury trial. This argument is largely unsuccessful, and given the 5% difference in conviction rates, it is unclear to me that mathematically the difference is significant or simply within a margin of error.

The Verdict

In this particular case, however, I was more than happy with the Judge who received our case. He was known to me as a former law secretary for one of my favorite Judges in Queens before whom I appeared regularly. I knew him to be a bright and honorable person and was happy to trust him to provide a fair trial and a just verdict in this case. He did not always see things my way, of course, but he did in fact provide a fair trial and a just verdict. The complaining witness testified and I was able to expose several inconsistencies in her version of the story that did not cast her credibility in a good light. The judge agreed that such testimony in combination with the rest of the case and also in combination with my own client's testimony (since we put her on the stand) raised a reasonable doubt in his mind and he found my client not guilty.

So despite the odds, we ended up on trial with a misdemeanor assault third degree charge in Queens, and we walked out victorious.